INTRODUCTION TO GLOBAL LAW II
WEEK 1-6
2024-2025
Week 1: Functionalism and Universalism in Comparative Law
Main Focus → 1.1 Introducing the Course (CLO 1)
1.2 Functionalism in Comparative Law (CLO 1, 3)
1.3 Universalism in Comparative Law (CLO 1, 2)
1.4 Case Study - Tort Law in Climate Change Litigation (CLO 3)
1.1 - Introducing the Course
1.2 - Functionalism in Comparative Law
Functionalism:
● Praesumptio similitudinis & relationship to universalism
○ Emphasis on functional similarities of socio-economic problems across societies
● Begin with functional (factual, not legal) question about a socio-economic problem
○ Tertium comparationis - ‘second order language’ describing the factual,
socio-economic problem
● Analyzing beyond positive law where behavior dictates that
○ Non-legal forms of social ordering
● How to approach foreign legal systems?
○ Internal perspectives, not external
● Which and how many countries to compare
Examples of Functional Questions:
● Is someone who emits noxious gases from their property responsible for harm caused to
their neighbors by exposure to the gas?
● Is a dog owner responsible for harm to wildlife caused by their unleashed dog?
● May a property owner harvest wildlife that is located on their own property at will?
○ Specific types of wildlife: wild berries, deer, rabbits, etc.
○ ‘At will’? Without license or authorization? Any time of the year? Any amount?
,INTRODUCTION TO GLOBAL LAW II
WEEK 1-6
2024-2025
1.3 - Universalism in Comparative Law
Universalism in Historical Perspective:
● ● The Stoics on natural law:
○ Nature is governed by Reason
○ Natural law arises out of human reasoning
○ Natural law corresponds to moral duties
○ Universal character of Nature & Reason
● ● Structure of natural law:
○ Higher-order principles
○ Lower-order rules
● Aristotle:
○ Synesis: good judgment in framing rules
○ Gnome: good judgment in deciding cases
● Aquinas & universalism under Christianity:
○ 4 types of law (Eternal, Natural, Divine, Human)
○ Authority of positive law rooted in natural law
○ Plurality of human laws supplementing universal natural law
Diagraming Universalism:
, INTRODUCTION TO GLOBAL LAW II
WEEK 1-6
2024-2025
Week 2: The Comparative Law Method
Main Focus → 2.1 The Analytic and Structural Methods of Comparative Law (CLO 1,2)
2.2 Tertium Comparationis (CLO 1, 3)
2.3 Translating in Comparative Law (CLO 1, 3)
2.1 - The The Analytic and Structural Methods of Comparative Law
Analytic Comparison:
● Focuses on comparing the use of complex concepts and rules in different legal systems
● Comparing in order to find commonalities and differences in how these concepts and
rules are understood and used
○ Eg. ‘ownership’, ‘contract’, ‘standing’, ‘personhood’
● Identifying an ‘ideal type’ of the concept
○ Comparing the degree to which each country’s particular formulation of the
concept fits this ideal depiction
● Functional method is very pragmatic; the analytic method is more concerned with subtle
details in the jurisprudence of a concept.
Structural Comparison:
● Comparison at a macro-level
○ (Functional & Structural methods are focused on macro-level issues--particular
socio-economic problems, or concepts)
● Comparison of structural elements considered to characterize or define entire fields of
law
○ E.g. Property law structured on the principle that the State holds final ownership
of all land, which is then offered for limited periods of concession to individuals
vs. systems structured on the principle of individual property ownership
○ E.g. Administrative law structured on the “recours objectif’ whereby individuals
have the standing to challenge the general lawfulness of administrative actions
vs. the ‘recours subjectif’ whereby individuals must demonstrate harm to their
specific, individual legal interests in order to challenge the lawfulness of
administrative actions
● Useful for categorizing legal systems into families (week 3) → Pro
● Losses nuance/detail in an effort to identify and compare underlying structures→ Con
2.2 Tertium Comparationis
Ground of Comparison:
● Tertium comparationis
○ The third part of the comparison
○ The independent factor purportedly shared by two or more things which prompts
the comparison between them
● Goal for legal comparisons: formulate the grounds of comparison in a manner that is
external to the specific legal framework of any one of the countries being compared
(usually one’s ‘own legal system’)
WEEK 1-6
2024-2025
Week 1: Functionalism and Universalism in Comparative Law
Main Focus → 1.1 Introducing the Course (CLO 1)
1.2 Functionalism in Comparative Law (CLO 1, 3)
1.3 Universalism in Comparative Law (CLO 1, 2)
1.4 Case Study - Tort Law in Climate Change Litigation (CLO 3)
1.1 - Introducing the Course
1.2 - Functionalism in Comparative Law
Functionalism:
● Praesumptio similitudinis & relationship to universalism
○ Emphasis on functional similarities of socio-economic problems across societies
● Begin with functional (factual, not legal) question about a socio-economic problem
○ Tertium comparationis - ‘second order language’ describing the factual,
socio-economic problem
● Analyzing beyond positive law where behavior dictates that
○ Non-legal forms of social ordering
● How to approach foreign legal systems?
○ Internal perspectives, not external
● Which and how many countries to compare
Examples of Functional Questions:
● Is someone who emits noxious gases from their property responsible for harm caused to
their neighbors by exposure to the gas?
● Is a dog owner responsible for harm to wildlife caused by their unleashed dog?
● May a property owner harvest wildlife that is located on their own property at will?
○ Specific types of wildlife: wild berries, deer, rabbits, etc.
○ ‘At will’? Without license or authorization? Any time of the year? Any amount?
,INTRODUCTION TO GLOBAL LAW II
WEEK 1-6
2024-2025
1.3 - Universalism in Comparative Law
Universalism in Historical Perspective:
● ● The Stoics on natural law:
○ Nature is governed by Reason
○ Natural law arises out of human reasoning
○ Natural law corresponds to moral duties
○ Universal character of Nature & Reason
● ● Structure of natural law:
○ Higher-order principles
○ Lower-order rules
● Aristotle:
○ Synesis: good judgment in framing rules
○ Gnome: good judgment in deciding cases
● Aquinas & universalism under Christianity:
○ 4 types of law (Eternal, Natural, Divine, Human)
○ Authority of positive law rooted in natural law
○ Plurality of human laws supplementing universal natural law
Diagraming Universalism:
, INTRODUCTION TO GLOBAL LAW II
WEEK 1-6
2024-2025
Week 2: The Comparative Law Method
Main Focus → 2.1 The Analytic and Structural Methods of Comparative Law (CLO 1,2)
2.2 Tertium Comparationis (CLO 1, 3)
2.3 Translating in Comparative Law (CLO 1, 3)
2.1 - The The Analytic and Structural Methods of Comparative Law
Analytic Comparison:
● Focuses on comparing the use of complex concepts and rules in different legal systems
● Comparing in order to find commonalities and differences in how these concepts and
rules are understood and used
○ Eg. ‘ownership’, ‘contract’, ‘standing’, ‘personhood’
● Identifying an ‘ideal type’ of the concept
○ Comparing the degree to which each country’s particular formulation of the
concept fits this ideal depiction
● Functional method is very pragmatic; the analytic method is more concerned with subtle
details in the jurisprudence of a concept.
Structural Comparison:
● Comparison at a macro-level
○ (Functional & Structural methods are focused on macro-level issues--particular
socio-economic problems, or concepts)
● Comparison of structural elements considered to characterize or define entire fields of
law
○ E.g. Property law structured on the principle that the State holds final ownership
of all land, which is then offered for limited periods of concession to individuals
vs. systems structured on the principle of individual property ownership
○ E.g. Administrative law structured on the “recours objectif’ whereby individuals
have the standing to challenge the general lawfulness of administrative actions
vs. the ‘recours subjectif’ whereby individuals must demonstrate harm to their
specific, individual legal interests in order to challenge the lawfulness of
administrative actions
● Useful for categorizing legal systems into families (week 3) → Pro
● Losses nuance/detail in an effort to identify and compare underlying structures→ Con
2.2 Tertium Comparationis
Ground of Comparison:
● Tertium comparationis
○ The third part of the comparison
○ The independent factor purportedly shared by two or more things which prompts
the comparison between them
● Goal for legal comparisons: formulate the grounds of comparison in a manner that is
external to the specific legal framework of any one of the countries being compared
(usually one’s ‘own legal system’)
